Product liability under the CISG and Concurring tort law claims ...

tion in this manner. This case does consequently not provide the type of uniform solution, which will solve
the product liability issue.
That the solution in the case is not sustainable is already evident in case law. As an example the Supreme
Court of Israel arrived at the opposite conclusion than the High Court in Thüringen, namely that the notice
requirement in art 39 CISG cannot be extended to have effect on domestic tort law. 133 This conclusion was
based on the simple fact that the Convention only governs rights and obligations arising from a contract cf.
art 4 CISG. Since a tort claim does not arise from a contract, it is not governed by the Convention and the
notice requirements included herein. 134
According to Professor Schlechtriem a tort action for property damages, caused by defective and nonconforming
goods, should not be barred by an omission to give notice within reasonable time under art 39
CISG. 135 The reason for this is that when dealing with property damages, which are recoverable under art
74 CISG as consequential damages, it is outside the principle domain of interest created by contracts and
has therefore entered the field of genuinely extra-contractual remedies. Allowing tort actions for property
damages, when the notice requirements in art 39 have not been fulfilled, prevents the loss of remedies
granted by art 45 CISG.
However, allowing the buyer to circumvent art 39 CISG by recourse to domestic law disturbs the balance
between the seller and the buyer established by the Convention. The buyer gets the advantage and thereby
it goes against the aim of the Convention, 136 regardless of whether genuinely extra-contractual remedies
have been granted by art 45 CISG. Furthermore, there is no actual loss of remedies under the Convention,
which the use of domestic tort law would prevent. The reason for this is that art 45 CISG should not be construed
as granting remedies, when the notice requirements in art 39 CISG have not been fulfilled. Surely art
45 CISG should not be construed in a manner which would undermine the entire aim and purpose of the
Convention by way of shifting the balance between buyers and sellers. In this authors opinion this is the
decisive factor.
A buyer who lost his right to rely on a lack of conformity in the goods and recover damages because he did
not give notice to the seller within reasonable time according to art 39(1)CISG, does not appear to be worthy
of much protection. Letting such buyers pursue concurring claims according to domestic tort law, gives
the buyer a very large advantage at the seller´s expense, which in this author´s opinion is not reasonable.
The situation is different when examining art 39(2) CISG. After the absolute time-limit of 2 years has surpassed,
the buyer has lost the right to rely on a lack of conformity in the goods even if the non-conformity,
which has resulted in damage to property, occurred at a much later stage. Here it is not the buyer´s lack of
good business management, which results in the loss of rights, but an ultimate time-limit provision. In these
situations it is more reasonable to allow buyers to pursue concurring claims, especially when the seller
has exhibited lack of due care or negligence. However, the Convention also has a solution - at least partially
- to this problem, provided in art 40 CISG. This provision and the solution it provides will be presented in
the following section.
133 Pamesa Ceramica v. Yisrael Mendelson Engineering Technical Supply Ltd. The case concerns ULIS art 39, which is
almost identical to art 39 CISG and the court referred to CISG case law and provisions in its conclusion, thereby making
the case relevant also in this setting.
134 Pamesa Ceramica v. Yisrael Mendelson Engineering Technical Supply Ltd, para 53.
135 Schlechtriem, Borderland page 473-474 section A.
136 Huber in Schlechtriem/Thomas page 370 para 47.
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